Use of Force to Effectuate Arrest and to Prevent Crime

Terms:

Arrest:
To seize and hold under the authority of the law.

Breach of the Peace:
The creating of a public disturbance through illegal or disorderly actions.

Both private citizens and police officers have a right to use force in attempting to arrest a suspect. Thus, if a private citizen or police officer is charged with a criminal assault or battery he may defend himself by arguing that the use of force was for the purpose of arresting a suspect. However, the scope and the availability of this defense depends on whether or not the arresting party was, in fact, a police officer or a private citizen.

According to the traditional rule, a police officer was allowed to use any non-deadly force that reasonably appeared to be necessary to make an arrest for any crime. However, deadly force was only allowed in situations where the officer reasonably believed that the suspect had committed a felony. See Stinnett v. Virginia, 55 F.2d 644 (4th Cir. 1932). Thus, if a police officer was trying to arrest someone for committing a misdemeanor and the only way he could bring about the arrest was through the use of deadly force, by law, the police officer had to let the suspect escape. The more modern views are even more stringent as to when deadly force is allowed. According to the more modern views, deadly force can only be used if the police officer has reason to believe that the suspect had committed a dangerous felony. If the police officer had reason to believe that the suspect committed a felony involving the risk of physical harm or death to others such as murder, manslaughter, kidnapping, rape or burglary, he could use deadly force to effectuate an arrest. However, if the police officer was trying to apprehend a suspect who he reasonably believed had committed a victimless felony or a felony that involved no risk of physical harm to others, deadly force cannot be used.

It is important to remember that a police officer is allowed to use force based on reasonable belief. Therefore, if a police officer reasonably believes that a suspect whom he is trying to arrest has committed a rape, the police officer may use deadly force, and that deadly force will be considered justified even if it turns out that the officer’s reasonable belief was wrong. See Bursack v. Davis, 225 N.W. 738 (Wis. 1929).

The Model Penal Code follows the more modern view and allows the use of deadly force only in situations where the crime that the suspect is arrested for involved the use or threatened use of deadly force or if there is a substantial risk that the suspect would seriously harm or kill someone else if the arrest were delayed.

Private citizens who are trying to make arrests are also allowed to use force, but their right to use force is much more limited than the right to use force available to police officers. A private citizen is only allowed to use deadly force when trying to make an arrest if the suspect, in fact, committed a felony. Unlike police officers, who can act upon a reasonable belief and whose actions based on a reasonable belief will be vindicated even if those beliefs turn out to be wrong, a private citizen must actually be right about the suspect he is trying to arrest. If a private citizen uses deadly force on a suspect and it turns out that the suspect did not commit a felony, the private citizen’s actions will not be justified no matter how reasonable his belief might have been that the suspect actually did commit a felony.

In situations where a private person uses non-deadly force to arrest a suspect, the use of non-deadly force is justified if: 1) a felony was in fact committed, 2) the defendant reasonably believed that the person he was arresting committed it and, 3) the defendant used no more force than reasonably appeared necessary to bring about the arrest.

Please note that where a private person is deputized by a police officer in order to assist the police officer in making an arrest, the private person has the same privilege to use force as does the police officer. See Commonwealth v. Fields, 183 A. 78 (Pa. 1936).

Once a suspect has been arrested, force may be used to prevent his escape so long as the force could have been used to bring about the arrest in the first place. In other words, if deadly force could have been used to arrest the suspect, then deadly force can be used to prevent him from escaping. If, however, only non-deadly force would have been allowed in arresting the suspect, then only non-deadly force can be used in preventing his escape.

A defendant charged with criminal assault or battery can defend himself by saying that the force he used was intended to prevent the commission of a crime. At common law, a person was allowed to use reasonable non-deadly force to prevent any crime that amounted to a "breach of the peace," if he reasonably believed that the crime was about to be committed in his presence or was being committed in his presence. However, deadly force was only allowed to prevent the perpetration of a felony. Modern rules have maintained the same standards for the use of non-deadly force. However, modern laws hold that the right to use deadly force is limited to preventing felonies that create a substantial risk of death or bodily harm to others. See Storey v. State, 71 Ala. 329 (1882).

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